Prior to the Civil War, a number of states had statutes prohibiting
"intermarriage ... [or] forms of illicit intercourse between the
races." Notably, "during the years of Reconstruction in the
South ... none of the statutes against miscegenation appear to have been
repealed." Even outside the South, only a handful of states
repealed their anti- miscegenation statutes in the wake of the Civil
War. By 1910, 28 states still had such statutes in effect. Six of these
states, all Southern, prohibited racial intermarriage through a
constitutional provision.

Although the text of these statutes varied by state, all 28 statutes
expressly prohibited intermarriage between whites and blacks. Seven
states prohibited marriages between whites and Asians in some form. The
universal application to African Americans suggests that these
prohibitions primarily sought to prevent white-black intermarriage;
legislators may have added Asian Americans by subsequent amendment in a
number of cases, rather than including them at the time of original
enactment.

Statutes prohibiting white-black intermarriage existed predominantly
in the South, where blacks resided in the most significant numbers.
Sixteen of the southern states in the belt between Delaware and Texas,
with the single exception of the District of Columbia, prohibited
black-white miscegenation by statute. This, however, also included
states like West Virginia--with a 5.26 percent black population--as well
as Oklahoma--with a 8.30 percent black population. Missouri, with its
4.78 percent black population, also imposed such a restriction.

Such statutes were by no means confined to the southern states, where
African American numbers were the most significant. Indiana, for
example, imposed intermarriage restrictions on its 2.23 percent black
population. Nebraska, which contained fewer than 8,000 African Americans
amongst its 1.2 million people, merely 0.64 percent maintained an
anti-miscegenation provision in 1910. North Dakota, a state that was
nearly 99 percent white, imposed a similar restriction. Eight western
states with meager African American numbers also enacted prohibitions on
intermarriage; the largest black population in the West was in Colorado,
whose 11,453 African American residents constituted 1.43 percent of the
state's population. The existence of anti-miscegenation statutes in
states with such marginal African American populations undermines
Stephenson's theory that this phenomenon correlates with multiple races
living in "anything like equal numbers." In all, 91.8 percent
of the African American population in 1910 resided in states where they
were subject to intermarriage restrictions.

The seven states applying their prohibitions to people of Asian
descent were Arizona, California, Mississippi, Montana, Nevada, Oregon,
and Utah. The specific language in these statutes referring to Asian
people varied from state to state. The statutes of Arizona, California,
Mississippi, and Utah all referred to "Mongolians." Nevada and
Oregon used the term "Chinese," and Montana specified both
"Chinese" and "Japanese" persons. The reasons behind
the inconsistent terminology are unclear, although the evidence suggests
that the importance of these distinctions should not be exaggerated.
First, the history of Asian American jurisprudence suggests a tendency
by courts to read inclusive racial categories narrowly, while reading
exclusive categories broadly. Secondly, a number of courts refer to
dictionary classifications of race, such as "that of Blumenbach,
who makes five ... [including] [t]he Mongolian, or yellow race,
occupying Tartary, China, Japan, etc. ... and ... the Malay, or brown
race, occupying the islands of the Indian Archipelago." Both of
these factors suggest that any court interpreting its state's
anti-miscegenation statute would be inclined to read the term
"Mongolian" broadly.

Although Oregon and Nevada mentioned only "Chinese" in
their intermarriage prohibitions, there is no case law from either state
to illustrate how broadly the courts interpreted this term. The
California case of Roldan v. Los Angeles County, however, offers a
helpful analogy. In Roldan, a Filipino litigant successfully utilized
Blumenbach's racial terminology to assert that California's prohibition
applying to "Mongolians" did not include him, since he was a
member of the "Malay" race. The California legislature,
however, quickly responded by explicitly adding "member[s] of the
Malay race" to the state's anti-miscegenation statute. The holdings
in cases like Rice and Hall, and the legislative response to Roldan,
emphasize the multiplicity of efforts broadly to prohibit marriage
between whites and any group of Asian Americans. Even, however, if such
terminology were to be interpreted narrowly as covering only a smaller
subset of Asian Americans, it would only further discredit Stephenson's
theory that such statutes corresponded to "other race elements
exist[ing] in considerable numbers."

Assuming that intermarriage prohibitions applied to the entire Asian
American population within the states in which they existed, no state
enforcing such a restriction contained an Asian American population even
close to the "anything like equal numbers" standard posited by
Stephenson. Although Mississippi contained a majority black population,
its total Asian American population--to whom it also extended its
intermarriage prohibition--amounted to only 259 people, or 0.01 percent
of the statewide population. Even in the West, three of the states in
which Asian Americans were prohibited from intermarrying with
whites--Montana, Arizona, and Utah--contained fewer than one percent
Asian Americans. Of the three remaining states, California had the
largest Asian American population, over 77,000, but this figure amounted
to only 3.26 percent of the total population of California. Thus, while
over two-thirds of the national Asian American population were
restricted by anti-miscegenation statutes in their home states, in no
such state did Asian Americans amount to even 1/30th of the population.
Such statistics strongly undermine the assertion that growing Asian
American numbers, threatening to disrupt the continuing dominance of the
white population, provided the primary motivation for these statutes.

C. 1950 Anti-Miscegenation Statutes

By 1950, whites had secured a majority of the population in each of
the forty-eight states and the District of Columbia. The African
American population had grown at a rate slightly below the national
average, and the Asian American population had grown at a slightly
above-average rate. In both cases, however, this growth was accompanied
by increasing dissemination throughout the country. African Americans
had moved west and now surpassed Asian Americans in every state except
Idaho and Utah. Asian American numbers also grew significantly in
eastern states with large metropolitan areas, like Illinois,
Pennsylvania, and New York. With both groups moving away from their
centers of density, the largest concentrations of population were
getting smaller. African Americans constituted less than a quarter of
the population in most of the southern states, and Asian Americans
comprised less than one percent of the population in every state except
California, where they now formed only 1.35 percent.

Despite this diffusion of both the black and Asian American
populations all 28 existing anti-miscegenation statutes remained in
effect, with two additional states adopting such statutes and eight
states adding Asian Americans to their prohibitions for the first time.
The states that adopted new anti-miscegenation statues after 1910 were
Wyoming, in 1913, and South Dakota, around 1919. The Wyoming statute
applied to "Negroes, Mulattoes, Mongolians, or Malays,"
forbidding the marriage of any of these races with "white
persons." The new South Dakota statute forbade the marriage of
"any person belonging to the African, [K]orean, Malayan, or
Mongolian race with any person of the opposite sex belonging to the
Caucasian or white race." Both statutes specifically included both
African Americans and Asian Americans within their prohibitions,
supporting the thesis that such prohibitions never independently
targeted Asian Americans.

Examination of the population patterns of these two states during
this time directly contradicts Stephenson's population-driven theory. In
1920, the first census year following the adoption of these two
statutes, Wyoming's African American population had shrunk by about a
thousand people from the previous census, down to only 0.71 percent of
the state population. The Asian American population had similarly
decreased by nearly 400, down to 0.74 percent of the total. In South
Dakota, the numbers had essentially remained stagnant, amounting to
combined Asian American and African American numbers of slightly over
1,000 people in a state of well over 600,000, just 0.15 percent of the
population. With the addition of these two statutes, a total of thirty
states prohibited intermarriage between whites and African Americans in
1950. With the dispersion of the black population, however, the total
proportion of African Americans covered by such statutes had
decreased--from nearly 92 percent in 1910 to 72.9 percent by 1950.

The six other states adding Asian Americans to their prohibitions for
the first time between 1910 and 1950 were: Georgia, Idaho, Maryland,
Missouri, Nebraska, and Virginia. Four of these states--Idaho, Maryland,
Missouri, and Nebraska--specifically added a reference to Asian
Americans in some form in their anti-miscegenation statutes. Nebraska
added the categories "Japanese or Chinese" in 1911. However,
these two groups combined in the 1910 Census constituted only 702 people
in a state of about 1.2 million, amounting to just 0.06 percent.
Similarly, Missouri added the term "Mongolians" in 1919, and
Idaho did the same in 1921. However, the 1920 Census shows that
Missouri's Asian American population actually decreased slightly from
the previous census, while the total state population had slightly
grown. Asian Americans still totaled less than 0.02 percent. The same
Census shows that Idaho's Asian American population had also slightly
shrunk since 1910, while the overall state population had grown by
almost a third. In 1920, Asian Americans in Idaho comprised less than
0.5 percent of the total population. Maryland, for the first time in
1935, added "member[s] of the Malay race" to its prohibitions.
Asian American numbers in Maryland, however, hovered around 500 between
1930 and 1940, constituting about 0.03 percent of the state's
population. For reference, Filipinos--a group commonly associated by the
courts with the term "Malay"--totaled only 272 in Maryland in
1940. Thus, in none of these states did Asian American numbers approach
those of the white population in the period immediately preceding the
inclusion of Asian Americans within anti-miscegenation statutes.
Contrary to Stephenson's thesis, these numbers remained low and, in some
cases, even decreased.

Georgia and Virginia did not include Asian Americans specifically
within their anti-miscegenation statutes, but instead declared it
illegal for a white person to marry anyone "save" a white
person--Georgia in 1927 and Virginia in 1924. In the same session,
however, the Georgia legislature defined "white person" as
"only persons of the white or Caucasian race, who have no
ascertainable trace of either Negro, African, West Indian, Asiatic
Indian, Mongolian, Japanese, or Chinese blood in their veins."
Therefore, the specific contemplation of Asian Americans in the adoption
of the statute is unquestionable. Likewise, the Virginia legislature in
the same session adopted legislation authorizing the State Registrar of
VitalStatistics to certify the "racial composition of any
individual, as Caucasian, Negro, Mongolian, American Indian, Asiatic
Indian, Malay, or any mixture thereof, or any other non-Caucasic
strains," thereby establishing the specific intent of the
legislature that Asian Americans be included with all other "non-
Caucasic" groups for legal purposes. Again, the Census numbers
depict an unusual background for these legislative actions. Virginia
contained only about 335 Asian Americans throughout the 1920s,
constituting only 0.01 percent of the state's nearly 2.5 million people.
Georgia's Asian American population remained at around 250, not even
reaching 0.01 percent of the state's population.

In all, the proliferation of anti-miscegenation statutes targeting
Asian Americans kept pace with the diffusion of this group throughout
the country so that, by 1950, the 15 effective statutes covered 64
percent of the Asian American population nationwide--as compared with 7
statutes reaching 67.3 percent in 1910. However, as Asian Americans
became decreasingly concentrated on the West Coast, they existed in
smaller niches and communities in states across the country. While Asian
American numbers may have substantially increased in areas of previous
scarcity by the middle of the twentieth century, in no territory did
they constitute even 1/74th of the residential population. Stephenson's
model--contending that statutory "distinctions" arose when
other races resembled "equal numbers" to whites--therefore
fails adequately to explain the gradual proliferation over this period
of intermarriage restrictions targeting Asian Americans.

[d1]. J.D., expected May 2002, New York University School of Law;
B.A., Northwestern University. Following graduation, the author will
begin a clerkship with The Honorable W. Royal Furgeson, Jr., United
States District Court, Western District of Texas. An earlier version of
this paper won the Leonard M. Henkin Prize from NYU School of Law.

[r1]. Interim Associate Dean and Rufus King Professor of Law,
University of Cincinnati College of Law. LL.M., Yale Law School; J.D.,
University of Michigan Law School; B.A., Wesleyan University. Thanks to
Wendy Parker, Victor Romero, Leti Volpp and Verna Williams for their
helpful comments.